ABA Section of Business Law

Would regulating paralegals help your firm or legal department? Is
regulation needed? Here's a look what's happening now and what could happen
in the future.

Paralegals are an inextricable part of American legal practice and are
often closely tied to the supervising lawyer's efficiency and even
competence. However, regulation of paralegals has largely been scant and
inconsistent, though the topic continues to find its way into courtrooms
and state legislatures. Across the country, paralegals urge bar
associations, state legislatures and courts to consider regulatory programs
that go beyond merely defining the term "paralegal."

Emerging regulatory programs vary in context and substance, from merely
establishing voluntary qualification criteria to requiring minimum
educational standards and mandating continuing legal education for
paralegals. While many legal professionals support voluntary regulation,
there is a lack of consensus on the need for mandatory paralegal
regulation. This article describes and compares paralegal regulatory
developments in several states.

The debate about the need for paralegal regulation is as old as the
profession. The arguments often parallel a person's view on the role of
paralegals in the delivery of legal services. Are paralegals merely
assistants to lawyers, or do they represent an independent profession that
requires separate regulation and supervision? While some are content
letting the supervising lawyer decide the qualifications of the paralegals
he or she hires, others call for increased supervision and regulation.

Even the advocates for increased regulation have differing opinions on what
needs to be done: Some want to raise the profile of the profession by
establishing standards for paralegals, while others call for mandatory
regulation that expands the role of paralegals in the delivery of legal
services and simultaneously protects the public from the unauthorized
practice of law. Proposals at the state and national levels recommend
various regulatory schemes as solutions. Some have been successful, others
not so successful.

In California, the desire to increase standards has resulted in legislation
that sets out a higher standard of education and mandatory continuing
education for paralegals. Sponsored by the California Alliance of Paralegal
Associations, California Business & Professions Code Sections 6450-6456
became effective on Jan. 1, 2001. Under the California statute, it is
unlawful for a person to identify himself or herself as a paralegal unless
he or she has met the qualifications of the statute and performs all
services under the direction of a qualified lawyer. Further, the terms
"paralegal," "legal assistant", "lawyer
assistant," "freelance paralegal," "independent
paralegal," and "contract paralegal" are synonymous under
Section 6454.

The California statute does not establish a governing body, mandatory
competency testing, or mandatory registration for the paralegal profession.
It does not provide for moral character checks or a disciplinary system.
However, it creates a crime enforceable by the courts and allows consumers
to bring a cause of action against an individual who violates the law.

In other jurisdictions, such as Texas and North Carolina, courts have
approved voluntary certification programs to set higher paralegal standards
and raise the profile of the paralegal profession. The Texas Board of Legal
Specialization administers a voluntary certification program for paralegals
who wish to be board certified in a specialty area of law. The
certification process is governed by the Texas Plan for Recognition and
Regulation of Legal Assistants, as amended in June of 1999.

Unlike in California, the Texas Plan does not restrict the use of the term
"legal assistant." Any legal assistant has the right to work
under the supervision of a licensed lawyer in any area of law even though
the legal assistant is not certified.

To become board certified under the Texas Plan, a legal assistant must meet
several eligibility requirements, including a satisfactory showing of
substantial involvement in the particular area of law for which
certification is sought. In addition, the legal assistant must have at
least five years experience, have peer reviews by professionals associated
with the specialty area, pass a four-hour written examination  and
in some circumstances  undergo an oral interview as part of the
certification process. Currently, there are 320 board certified legal
assistants in Texas.

The North Carolina State Supreme Court also recently adopted a program
called the Plan for Certification of Paralegals. Approved and administered
by the North Carolina State Bar, the North Carolina Plan is a self-funded
voluntary certification program.

As in the Texas Plan, the North Carolina Plan does not restrict the use of
the term "paralegal" nor does it differentiate between the
services that can be performed by a certified or noncertified paralegal.
Thus, a paralegal in North Carolina can choose not to be certified and
still perform substantive legal work under the supervision of a lawyer
using the titles "paralegal" or "legal assistant."
North Carolina Certified Paralegals must meet a minimum level of education
to be eligible for certification and must have a minimum level of
continuing education to remain certified under the plan.

The Florida State Bar Board of Governors is currently reviewing a two-tier
plan recommended by the State Bar Special Committee to Study Paralegal
Regulation. Tier one would include those paralegals who meet the
requirements of Florida State Bar Rule 10-2.1, which defines a paralegal as
a person who performs delegated substantive work for which a lawyer is
responsible. Tier two paralegals would have to meet more stringent
experience, educational and continuing education criteria to hold
themselves out as a "Florida Registered Paralegal." If approved
by the State Bar Board of Governors, the plan will be submitted to the
Florida Supreme Court for final action.

California, Florida, and Louisiana also have voluntary paralegal
certification programs administered through their statewide paralegal
associations. To be eligible for these state certifications, the paralegal
typically must first get a national credential. The Certified Legal
Assistant/Paralegal program established by the National Association of
Legal Assistants (NALA) and the Paralegal Advanced Competency Exam offered
by the National Federation of Paralegal Associations (NFPA) are well
recognized national professional certification programs.

Established in 1976, NALA's Certified Legal Assistant/Paralegal (CLA/CP)
program is a voluntary self-regulatory program that encourages the growth
of the paralegal profession and a high level of achievement. The CLA/CP
examination is a two-day comprehensive exam with more than 1,000 questions
based on federal law and procedure. More than 13,000 paralegals have
obtained the CLA/CP credential. Continuing education is required to
maintain the credential.

NFPA's Paralegal Advanced Competency Exam (PACE), established in 1994,
provides a competency evaluation of paralegals. PACE is a four-hour
computer-generated exam. An applicant successfully passing the exam is
entitled to the "Registered Paralegal" credential but must obtain
continuing education to maintain it.

Some in the legal profession endorse paralegal regulation that expands the
role and activities of paralegals in order to improve public access to
affordable legal services while protecting the public. NFPA strongly
supports this view. In its Statement on Issues Affecting the Paralegal
Profession, NFPA states that public protection and professional
accountability are integral to any regulatory plan, but first, it is
necessary to do the following:

Identify traditional and nontraditional areas in which paralegal roles
and responsibilities can be expanded;

revise the applicable Rules of Professional Conduct or Code of
Professional Responsibility to allow for expanded roles and
responsibilities for paralegals, including: (1) revision to the references
concerning ultimate responsibility and accountability of a lawyer for
paralegal work, rather than under direct supervision and (2) revision to
references concerning nonlawyer partnerships with lawyers and fee-sharing
arrangements with nonlawyers;

provide a model for revisions to court rules that would permit expanded
roles and responsibilities for paralegals; and

provide a model for expanded rules of practice in state administrative
agencies for representation by paralegals and other qualified
nonlawyers.

In line with this expanded role of paralegals, NFPA endorses regulations
that recommend mandatory licensing and proposes a two-tier program,
including standards for education, standards to measure competency, ethical
rules and a disciplinary process. NFPA also believes that any licensure
plan should define those tasks that may be performed by paralegals in
numerous specialty areas of law. While recognizing that the regulation of
nonlawyer activity is best addressed at the state level, NFPA urges the
legal community to recognize its responsibility to provide the public with
various levels of services at different levels of expertise and costs.

Currently, some voluntary registration programs allow for the expanded role
of paralegals. In various counties in Washington, including King County,
Pierce County and Spokane County, the bar associations have established
voluntary registration programs that allow qualified nonlawyers to perform
certain direct services. For instance, a paralegal in these counties can
register with the bar or the court to present ex parte orders.

A mandatory registration is required for certain nonlawyer direct service
providers in states such as California. For instance, "legal document
assistants" and "unlawful detainee assistants" in California
are subject to registration and bonding under Business & Professions
Code Sections 6402 and 6405 respectively. To be eligible to register, the
applicant must meet minimum educational or experience requirements
according to Section 6402.1.

Arizona has a similar provision in its Code of Judicial Administration.
Section 7-208 requires legal document preparers in Arizona to meet certain
minimum education requirements, experience requirements, and pass a written
examination.

The Wisconsin Supreme Court is currently considering a proposed form of
paralegal licensure. Endorsed by the Wisconsin State Bar, the proposed
licensure program was drafted by State Bar's Paralegal Task Force. It is
intended both to establish professional standards for paralegals and to
improve the use of paralegals in an effort to meet some of the legal needs
that currently go unserved. If enacted, it would be unlawful for a person
in Wisconsin to use the title "paralegal" unless licensed. To be
eligible for a paralegal license in the proposed system, the person must
meet certain post-secondary education, training requirements, and
continuing education standards.

Not everyone agrees on the need for mandatory regulation of paralegals.
Certain courts and paralegal organizations believe that consumers of legal
services are adequately protected by the license of the lawyer for whom the
paralegal works, and that regulation may hinder the growth of the
profession.

In 1999, the New Jersey Supreme Court declined to adopt a paralegal
licensing system and concluded that paralegal oversight is best conducted
by the lawyers who supervise the paralegals and are accountable for their
work. The court recommended that the New Jersey Bar Association work with
the paralegal community to create a certification program as a means to
recognize and identify qualified paralegals.

The Washington State Bar Association Board of Governors also turned down a
paralegal licensing proposal by the Washington State Practice of Law Board,
which would have established a process to license certain nonlawyers to
render assistance or advice in defined areas of law.

Several paralegal organizations have published statements against licensing
paralegals. NALA, with a membership composed of more than 18,000
paralegals, through individual membership and its 90 state and local
affiliated associations, opposes any mandatory regulation. In its statement
to the New Jersey Supreme Court, NALA argued that there is no demonstrated
public need to regulate paralegals who work under the supervision of a
lawyer. NALA instead supports voluntary self regulation through its
national professional certification program.

Likewise, the International Paralegal Management Association (IPMA), an
international association of paralegal managers, opposes any type of
mandatory regulation of paralegals. In its Position Paper on Paralegal
Regulation, IPMA argues that regulation will not increase the standards of
the profession nor expand the role of paralegals.

It is the job of the consumer to determine the value of legal services.
Clients will continue to protest fees for inadequate or overpriced legal
services, and the courts will also play a role by awarding fees for
substantive paralegal work and refusing to award fees for clerical work
whether performed by a lawyer or a paralegal.

Like NALA, IPMA believes that mandatory regulatory programs may hinder the
growth of the profession. It argues that such programs are costly to
implement and may be translated into higher salaries and higher billing
rates, which in turn will increase the cost of paralegal services.

Regulatory requirements, IPMA argues, may deter college graduates
considering law school from first working as paralegals and may deter those
in other industries from considering the paralegal field as a second
career. This may deprive firms from hiring other types of otherwise
qualified candidates. Regulation may also prevent firms from collecting
court-approved fees for paralegals who do not meet regulatory requirements.

Whether the paralegal regulation is voluntary or mandatory, lawyers are
ultimately accountable for the work done by a paralegal under their
supervision. Needless to say, lawyers must verify academic credentials and
prior work history when considering a paralegal and must ensure that their
paralegals are informed of changing laws and ethical concerns.

An established certification or licensure system will be helpful for
lawyers to ascertain paralegals' qualifications and their continuing
education. As employers and consumers of paralegal services, lawyers have a
strong voice in making changes in paralegal regulation.

Defining regulation

The requirements of regulatory programs vary from state to state. In
general, regulation comes in several forms, including registration,
certification and licensure.

Registration involves the process by which individuals or
institutions list their names with an association or agency. It may be
voluntary or mandatory. Education, training or bonding requirements are
sometimes associated with registration.

Certification programs are designed to validate an individual's
specific skill and knowledge at or above an established performance level.
Elements of professional certification programs include established
standards, consistent and relevant testing, and regular updating and
renewal. Certification programs can be administered through private
organizations or public agencies. Certification is typically not a legal
precedent to gain employment in a particular field.

Licensure is the process by which an agency or branch of government
grants permission to persons meeting predetermined qualifications to engage
in a given occupation or use a particular title. Licensure is a mandatory
legal condition for employment and is generally enacted by legislation. The
impetus behind a legislature to license a profession is the health, welfare
and safety of the public.

 Catherine R. Durgin

Durgin is a paralegal with Loeb & Loeb LLP, in Los Angeles. Her
e-mail is cdurgin@loeb.com.